Tinner v. Coffee

FILED
United States Court of Appeals
Tenth Circuit
June 11, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
FABIAN TINNER,
Plaintiff - Appellant,
v. No. 13-3055 and 13-3068
(D.C. No. 2:12-CV-02751-EFM-GLR)
WILLIAM COFFEE, District Court of (D. Kan.)
Johnson County Hearing Officer; JERI
DOYLE, District Court of Johnson
County Div. 9 Administrator;
JENNIFER HAGG, District Court of
Johnson County Deputy Trustee; AMY
MITCHELL, Attorney; JASON P.
OLDHAM, Clerk of Kansas Court of
Appeals; (FNU) DUNN-
GYLLENBORG, District Court of
Johnson County Kansas Judge,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, HOLMES, and MATHESON, Circuit Judges. **
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Plaintiff-Appellant Fabian Tinner, proceeding pro se, appeals from the
district court’s order dismissing his complaint. Mr. Tinner alleged various
constitutional violations during child support proceedings, naming several Kansas
state court personnel as defendants. The district court dismissed the case because
the factual predicate was similar to a prior case Mr. Tinner filed against similar
defendants. Mr. Tinner also filed a motion to amend the complaint with his first
notice of appeal in this case. The district court denied the motion because it
lacked jurisdiction to decide it. Mr. Tinner appeals both orders. 1 Exercising
jurisdiction pursuant to 28 U.S.C. §1291, we affirm.
Mr. Tinner filed the present complaint in November 2012, asserting
multiple claims against multiple defendants. It looked remarkably similar to a
prior complaint which the court dismissed in April 2012 for a variety of reasons,
including lack of jurisdiction, abstention, judicial immunity, and the failure to
state a claim. See Tinner v. Foster, No. 11-2695-EFM-KGG, 2012 WL 1473417(D. Kan. Apr. 27, 2012), appeal dismissed, 491 F. App’x 936 (10th Cir. 2012). In
December, the court ordered Mr. Tinner to show cause why the action should not
be dismissed pursuant to Fed. R. Civ. P. 12(h)(3) or 28 U.S.C. § 1915(e)(2)(B).
Mr. Tinner filed a response, but the district court was not persuaded. Therefore,
1
We also note that Mr. Tinner unsuccessfully sought to remove the state
court action to federal court. See Blaylock v. Tinner, No. 13-2045-EFM, 2013
WL 1491207, at *1 (D. Kan. Apr. 11, 2013).
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the district court properly dismissed the matter. Because Mr. Tinner appealed
that order while simultaneously attempting to revise his complaint, the district
court also properly denied his motion to amend. See Fed. R. Civ. P. 62.1(a)(2);
see also Combs v. PriceWaterhouse Coopers LLP, 382 F.3d 1196, 1204–05 (10th
Cir. 2004).
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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